20060531
BETWEEN:
DANIEL GARCIA REYES
BRAYAN DANIEL GARCIA ARZETA
VALERIA NATALY GARCIA ARZETA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (IRB) in which the IRB found that the applicants were not convention refugees and not persons in need of protection.
[2] The applicants are a husband (Daniel) and wife (Diana) and their two minor children who are citizens of the United States of Mexico who claim they cannot return there safely.
[3] Daniel was arrested on March 21, 1996 and charged with theft in the State of Mexico in which he lived. He pleaded guilty and received a five year prison sentence. He says that on February 26, 1998 he witnessed the murder of his cell mate by three other inmates. Those inmates also attacked him that day. He subsequently testified against the three inmates and they were convicted. He was released from prison on August 8, 1998. He says that before, during, and after the trial of the three inmates, and after leaving prison, he received threats on his life. The particulars of these will be discussed below. He says that the fear for himself and his family engendered by these threats caused them to leave Mexico and come to Canada on January 12, 2003.
[4] The IRB in its decision found that the applicants' story was not credible and that there was an Internal Flight Alternative open to them: namely to move from where they had lived in the State of Mexico to La Paz, Baha California, also in the United States of Mexico.
Analysis
[5] I am satisfied that on the basis of the jurisprudence and a pragmatic and functional analysis, the proper standard of review with respect to these factual findings of the IRB is patent unreasonability. See Aguibor v. Canada (1993), 160 N.R. 315 (F.C.A.); Guci v. Canada, [2004] F.C.J. No. 1256 (F.C.). It appears to me that, as the Federal Court of Appeal said in Owusu-Ansah v. Canada, [1989] F.C.J. No. 442, the IRB here has "overreached itself in its search for inconsistencies in the Applicant's evidence". I will describe a number of such findings.
[6] First, although the Board member (see application record p. 9) noted that the claimant had submitted documents establishing the facts of his imprisonment and release, she seems to have lingering doubts at page 10 as to whether Daniel was actually in jail when he said he was because she interpreted the birth certificates of his children as possibly contradicting this fact. This appears to me to be an unreasonable approach to the evidence.
[7] The panel member perceived some minor inconsistencies between what Daniel was recorded as saying in his Port of Entry Notes and what he later said in his Personal Information Form (PIF). It is difficult to attach much importance to that, and counsel for the claimant has questioned whether a translated version of the Port of Entry Notes was ever made available to Daniel before the hearing.
[8] Daniel stated in his PIF that he had been told in August, 2000 that there was a contract out on his life placed by Julio, one of the three inmates involved in murdering his cell mate. In January, 2003 he and his family left Mexico and came to Canada. The panel member disbelieved his statement concerning the contract because in fact he was not killed before he left Mexico. But he had also stated that in March, 2001 a gun was fired at him from a passing car and in April, 2002 he was beaten up by three men who said they were sent by Julio. He stated he was beaten again in November, 2002 and told that the next time he would be killed. It seems to me in the circumstances to be patently unreasonable to reject the assertion that a contract had been placed on Daniel's life just because he had not in fact been killed.
[9] Daniel stated in his PIF that Julio and his associates were engaged in drug trafficking in prison and killed his cell mate because the latter had reported their activities to the prison director. He implied that some of the prison authorities were in collusion with the drug traffickers. The panel member noted that he also stated that he was given special protection in prison when he became a witness against the three men accused of the murder. The panel member found it inconsistent that some prison authorities protected him and others were allegedly corrupt. I find this a patently unreasonable assumption to make that there could not be both honest and dishonest members of the prison staff.
[10] The panel member disbelieved that there had been a trial of the three inmates for the murder of Daniel's cell mate because no media reports were provided of this trial. She said that "it would stand to reason that there would be some local report of this in the local media". She does not specify what local media should have been expected to report it. It appears to me that this is an unreasonable assumption.
[11] The panel member also apparently continued to disbelieve that the claimant had been tried and convicted in 1996, because in spite of efforts on behalf of the claimant to get some written confirmation or documentation from the lawyer who represented him, no such documentation had been produced. These events of course happened more than eight years prior to the IRB proceeding and in my view it is not at all improbable that by that time the lawyer either was unwilling or unable to provide any written confirmation. Further, the panel member's apparent continuing doubt about Daniel's claim to have been tried in 1996 is inconsistent with her earlier conclusion (applicants' record p. 9) that documents submitted by Daniel from Mexican sources, including a record of his parole which refers to his sentence, corroborated his allegations of having served a prison sentence.
[12] The panel member referred to a medical letter on file concerning the treatment of Daniel following the attack on him in April, 2002. In his own description of that attack, Daniel in his PIF does not mention being stabbed. The medical letter reported a cut wound on the claimant's back. The panel member found this inconsistent with Daniel's description in his PIF in which he simply said that he was beaten in the street by three men and sought medical attention at the San Augustine Clinic. The panel member also found an inconsistency in the fact that the medical letter did not refer to any scars of old wounds which he claimed to have received in 1998 from the three inmates the day that they killed his cell mate. I believe it is patently unreasonable to find a lack of credibility on the basis of such analysis. There is no necessary inconsistency between Daniel saying that he was beaten and treated at a clinic, and a letter from the clinic confirming the treatment of injuries which included a "cut wound". Nor is it necessarily detrimental to Daniel's credibility that the clinic did not make note of scars from previous wounds suffered some six years previously.
[13] The panel member also dismissed, as lacking in probative value, a psychological report which stated that Daniel and his wife were suffering depression and anxiety and that forcing him to return to Mexico would lead to devastating consequences. The panel member observed that the cause of the depression cannot be certainly identified and that it might not have anything to do with the alleged attack and threats. I respectfully agree that the psychological report could be of only minor corroborative value in the circumstances.
[14] The panel member did raise with the applicants certain perceived inconsistencies, namely the lack of court records concerning Daniel's trial and the lack of any records from his lawyer and Daniel's inability to introduce them. Other inconsistencies noted above she did not raise. While I accept that generally there is no duty on the IRB to put obvious inconsistencies to a claimant either at the hearing or in writing (see Guci v. Canada, supra), it is doubtful if this is adequate where an inconsistency is not apparent but is only found after the panel has an opportunity to make a review of the entire record: see Gracielome v. Canada, [1989] F.C.J. No. 463 (C.A.).
[15] The panel member also found that there were many other places in Mexico where the claimants could live safely other than Mexico State where their troubles originated. At the hearing she asked them if they could not go back and live in La Paz in Baha California. Daniel responded that wherever they move the people who had threatened his life would find him. There was no other evidence concerning La Paz but the panel member referred to it in her decision and found that the claimants would have an Internal Flight Alternative by settling elsewhere in Mexico other than in the State of Mexico. I believe that the appropriateness of this finding depends on whether or not the Board can be satisfied that the claimants' main assertion is credible: namely that if they returned to Mexico Daniel's life or safety will be in danger from Julio and his accomplices and that this danger will by its nature be present throughout the United States of Mexico.
Conclusion
[16] I will therefore set aside the decision of the Refugee Protection Division of the Immigration Refugee Board of July 5, 2005 and refer the matter back to the Board for reconsideration by a different panel in accordance with these reasons.
JUDGMENT
The decision of the Refugee Protection Division of the Immigration and Refugee Board of July 5, 2005 is set aside and the matter referred back for reconsideration by a panel differently constituted in accordance with these reasons.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5278-05
STYLE OF CAUSE: DIANA ISABEL ARZETA AVILA, DANIEL GARCIA REYES, BRAYAN DANIEL GARCIA ARZETA, VALERIA NATALY GARCIA ARZETA and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 26, 2006
REASONS FOR : Deputy Judge Strayer
APPEARANCES:
| Mr. J. Byron M. Thomas Etobicoke, Ontario
|
FOR THE APPLICANTS |
| Mr. John Loncar Toronto, Ontario |
|
SOLICITORS OF RECORD:
| Mr. J. Byron M. Thomas Etobicoke, Ontario
|
|
| Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario |
|